Monday, August 15, 2005

To Know or Not to Know? That is the Question.

Dahlia Lithwick of Slate has an interesting argument over at concerning state-based parental notification laws when a minor seeks an abortion. Lithwick says these laws have less to do with parental rights, than with the Right's desire to decrease the number of abortions performed each year. Also, parental notification laws are contradictory in the realm of personal privacy and are largely unnecessary considering most girls consult with their parents before getting an abortion.
Parental notification statutes are widely popular, I know, but let's put to rest the myth that they exist solely to promote robust and healthy communication about family choices. For one thing, as abortion rights groups argue, you cannot legislate healthy communication; all you can legislate is snitching. Good data show that the majority of pregnant teens actually do tell their parents when they are considering an abortion, so parental notification and consent laws single out many of those teens with a really compelling reason not to disclose their condition—like incest or abuse. A teen who knows she will be thrown out when her parents learn of her condition is precisely the kid who should not be forced to communicate that fact.

But the best evidence that these laws are not really about promoting open family discussion is that most of the time in most states, parents have no legal entitlement to know when their child gets pregnant. Physicians are not mandated to report when a minor chooses to become sexually active, to use contraceptives, or even to carry a baby to term and keep it. If all big childbearing decisions need a parental OK, why are these decisions deemed private? Parental consent rules assume that teens need a parent's medical, emotional, and financial support to terminate a pregnancy but apparently not to bear a child.
What I always find amusing about the Radical Right is that they have wiped away the most cherished and legitimate fear of old-time conservatives: the rise of the nanny state -- watching over and coddling one segment of the population to ensure what is perceived as their best interest. Now I agree that a minor's weighing the abortion option is a momentous decision in her life, but if she isn't going to tell her parents, then the state shouldn't coerce doctors into violating their doctor-patient privilege because a large segment of the population believes abortion is immoral. For one thing, I think the majority of abortions performed in this country are immoral, but I don't want to legislate my morality, which social conservatives and the Radical Right want to do.

And as Lithwick convincingly argues, the Right wants to legislate parental notifications to take the abortion issue out of the hands of two distrusted professional classes: judges and doctors.
The difference, of course, is that abortion is seen as killing a baby—a far more consequential decision than raising one. And, once you accept this premise, it's easy to see why the parental notification and partial-birth abortion statutes have become a war on any doctors and judges who choose to enable young women to terminate a pregnancy. Doctors or judges charged with using their professional judgment to help a teen make a tough decision are really acceptable to the political right only if the ultimate decision is to keep the child. These laws "work" only when these experts say no.

The reason social conservatives seek to have no exception to New Hampshire's parental notification statute for situations in which there is a risk to the health of the mother is straightforward: They don't trust doctors. This was the fight at the heart of the partial-birth abortion dispute in the 2000 case of Stenberg v. Carhart, decided by a familiar 5-4 margin. The fear in both contexts is that a health exception in the hands of sympathetic physicians puts no real meaningful limit on abortion; doctors will always be able to invent bogus health exemptions. And so, as Clarence Thomas pointed out in his Stenberg dissent: "A health exception requirement ... imposes unfettered abortion-on-demand. The exception entirely swallows the rule.''

So appalling is the notion that a doctor might have the power to second-guess the law in a health emergency that the subsequent, post-Stenberg version of the federal partial-birth abortion ban still contains no health exception. In the view of anti-abortion advocates, doctors have too many financial and political incentives to thwart the law, and, as a consequence, their discretion must be cut back to nothing.

Having assailed the professional judgment of physicians for years, social conservatives are now, not surprisingly, turning on the judges who oversee bypass requests. (Insertion: Bypass requests allow a teen to petition the court to avoid telling her parents.) Where doctors were dismissed as mere rubber-stampers, judges are now labeled as the same. The same conservatives who promoted and passed parental consent laws are now arguing that the judicial bypass loophole eviscerates the whole rule. That's right, the new problem with abortion isn't just with the craven ideological doctors who justify the procedures, but with the soulless ideological judges who rubber-stamp them.
Lithwick ends by noting the Right's parental notification strategy combined with excluding doctor decided health exclusions and court-based judicial bypasses is the same strategy pursued by social conservatives' during the Schiavo affair. After demonizing the individual (Michael Schiavo) that chose to terminate life, they went after the professional decisions of both doctors and judges who gave that decision legitimacy.

We can only hope this strategy of moral overkill will sink the ship of the social conservative nanny state, thereby protecting those tenuous rights of privacy and individual choice for some more time.